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Old Thursday, November 29, 2012
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Default Seniors Plz check my notes topic Recognition

Define Recognition. What are conditions for recognition of a new State. Critically examine both – Constitutive and Declaratory theory in relation to the nature of recognition under International law.

Ans.
Meaning and Definition of the term „Recognition

:- According to Prof. Oppenheim :-
“ In recognizing a State as a member of international community the existing states declare that in their opinion the new State fulfills the conditions of statehood as required by International Law.”
The Institute of International Law has defined the term „recognition‟ in the following words :
“It is the free act by which one or more States acknowledge the existence of the definite territory of a human society, politically, independent of any other existing State and capable of observing obligations of International Community.”

Conditions for recognition of a new State:
According to Kelson, a Community to be recognized as an international person must fulfill the four conditions.

(a) The Community must be politically organized.
(b) It should have control over a definite territory.
(c) This control should tend towards permanence; and
(d) The Community thus constituted must be independent.

But International law does not provide as to how those essential conditions are to be determined. International Law leaves the members of International Community free to determine whether the States to be recognized contain essential conditions of Statehood. It is because of this reason that recognition is very often said to be a political diplomatic function.
THEORIES OF RECOGNITION :-
There are two main theories of recognition :-
(1) Constitutive Theory
(2) Declaratory or Evidentiary Theory

(1) Constitutive Theory :-

According to Oppenheim – “a State is, and becomes, an international person through recognition only and exclusively”.
According to this theory, recognition clothes the recognized State with duties and rights under international law, Recognition is a process through which a political community acquires international personality of becoming a member of the family of nations. Hegel, Anzilloti Holland, Oppenheim, etc are the chief exponents of this theory. Judge Lauterpacht has written that there is a legal duty on the part of the States to recognize any community that has in fact attained Statehood.

Criticism :-
This theory has been severely criticized by many jurists. In practice, States do not accept any obligation to recognize a community that has attained statehood, although they may normally recognize it. According to this theory, unrecognized State can have neither rights nor duties under International law. This is a very absurd suggestion.

(2) Declaratory Theory :-
According to this theory, statehood or the authority of the new government exists as such prior to and independently or recognition. Recognition is merely formal acknowledgement through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular State or government possesses the essential attributes of statehood as acquired under International law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Carbett and Fisher.

Brierly has remarked that :- the granting of recognition to a new state is not constitutive,‟ but a declaratory‟ act.
Criticism :-The view that recognition is only a declaratory of an existing fact is not completely correct, In fact when a state is recognized, it is declaratory act. But the moment it is recognized, there ensue legal effects of recognition which may be said to be of constitutive nature.
Conclusion :- On the basis of the above discussion it may be concluded that recognition is declaratory as well as constitutive.
Oppenheim has admitted that :- “recognition is declaratory of an existing fact but Constitutive in nature”.
Kinds of Recognition
1. Express recognition – may be verbal or in writing;
2. Implied recognition – when the recognizing state enters into official intercourse with the new member by exchanging diplomatic representatives with it, trade relations etc.

The Act of Recognition is Indicative of the Following Intentions
1. To treat with the new state as such;
2. To accept the new government as having authority to represent the state;
3. To recognize in the case of insurgents that they are entitled to exercise belligerent rights.

Recognition of State
The recognition of a new state is the free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.

Recognition of Governments
The recognition of the new government of a state which has been already
recognized is the free act by which one or several states acknowledge that a
person or a group of persons are capable of binding the state which they claim to
represent and witness their intention to enter into relations with them.
Recognition of Belligerency
Belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate government.
Conditions for a Belligerent Community to Be Recognized
1. There must be an organized civil government directing the rebel forces;
2. The rebels must occupy a substantial portion of the territory of the state;
3. The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain; and,
4. The rebels must be willing and able to observe the laws of war.

Consequences of Recognition of Belligerency
Upon recognition by the parent’s state, the belligerent community is considered a separate state for purposes of the conflict it is waging against the legitimate government. Their relations with each other will, thenceforth and for the duration of the hostilities, be governed by the laws of war, and their relations with other states will be subject to the laws of neutrality.




Two Kinds/Modes of Governments
1. De Jure
2. De facto

De facto recognition: Recognition de facto means that in the opinion of the recognizing state, provisionally and temporarily and with all due reservations for the future, the state and government recognized fulfills the requirement laid down by International Law for effective participation in the international community.

De jure recognition: Recognition de jure means that according to the recognizing state, the state or government recognized formally fulfills the requirements laid down by International Law for effective participation in the international community.

Difference between de facto and de jure recognition: Following points can be referred as distinction in both the recognitions:

1. Durability:

(1) De jure: It is permanent and durable.

(2) De facto: It is temporary and transitory.

2. Revocation:

(1) De jure: It cannot be revoked.

(2) De facto: It can be revoked.

3. Succession:

(1) De jure: Legally or constitutionally recognized government succeeds former government.

(2) De facto: De facto recognition does not follow succession.

4. Status:

(1) De jure: State having de jure recognition can sue.

(2) De facto: State having de factor recognition cannot sue.

5. Diplomatic relations:

(1) De jure: This recognition enjoys diplomatic relations and immunities as well.

(2) De facto: Diplomats do not enjoy immunities.

6. Demand of property:

(1) De jure: State, which is recognized de jure, can demand her share in state property.

(2) De facto: This recognition lacks demand of property.

7. Treaties:

(1) De jure: State may make treaties with other states.

(2) De facto: State cannot make treaties with other states and if so, temporarily and with due reservations.

Legal effects of recognition:
Following are the points notable as legal effects of recognition:

1. Right to sue: Right of suing in the courts of the recognizing state.

2. Effect on enactment: Have effect of its legislation by these courts.

3. Certain immunities: May claim immunity from suit in regard of its property and its diplomatic representatives.

4. Right to demand property: Entitles to demand and receive property.

5. Certain privileges: Privileges of membership of international community.

6. Right of treaties: Capacity to conclude treaties.

7. International obligations: Subject to various obligations under International Law.



Note: I have prepared this from int law by LN tandon and cssforum thread
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How for the individual can be said the subject of International Law.?
Ans.
There are different schools of thoughts for the classification of subjects of Int.Law
1. According to one school called Soviet “Only States are the subjects of international law”.
• International law regulates behavior of states.
• IL has been originated through mutual relations of states
• It is quite significant in its name and from practices.
2. Only individuals are subjects of international law
• At the root of all laws there is a man.
• State is noting without individuals
3. States, Individuals and some organizations are the subjects of IL.


In recent times several treaties have been entered into wherein certain rights have been conferred and duties have been imposed upon the individuals. In this connection following may be noted:
(i) Pirates – Pirates are treated as enemies of mankind under international law. Every State can apprehend and punish them.
(ii) Harmful acts of Individuals – Under certain circumstance States are responsible for the harmful acts of their individuals. If a person causes harm to the personal property of the Ambassador of another State, then under international law the State is responsible for his act. Such persons are, therefore, given stringent punishment.

(iii) Foreigners – To some extent international law regulate the conduct of foreigners. It is the duty of each State to give them those rights which it generally confers upon its own citizens.
(iv) War Criminals – War criminal can be punished under international law. According to Nuremberg and Tokyo Tribunals, since war crimes are committed by the individuals, it is by punishing them the provisions of international law can be enforced.
(v) Espionage – Espionage is a crime under international law and, therefore, spies can be apprehended and punished.
(vi) The United Nations Charter gives a place of importance to the individuals. An individual of any member State of the U.N. who claims to be the victim of violation of Human Rights by his own State may send a petition to the Commission through the Secretary-General of the U.N.
(vii) The 1965 Convention on the Settlement of Investment Disputes between the State and the Nationals of other States is a glaring example of such benign trend.
Thus slowly and gradually individuals are occupying an important place under international law
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International Law is Law in proper sense. Critically examine the statement. Give your suggestions for improving International Law.
Ans.
Whether International Law is law in the true sense of the term or not –
The Controversy whether International Law is true Law or not depends upon the definition of the word „law
‟. As remarked by “Prof. Glanville L.Williams, The largest of jurisprudential controversy that as to the word „law‟ is a verbal dispute and nothing else.”
If we subscribe to the view of Hobbes, Austin and pufendorf, that law is command of sovereign enforced by superior political authority, then International law cannot be included in the category of law.
On the other hand, if we subscribe to the view that the term „law‟, cannot be limited to the rules enacted by the superior political authority, then international law can be included in the category of law. The definition of law given by Austin is not correct.
In the words of Prof. Oppenheim, “This definition is not correct. It does not cover that part of Municipal law which is termed as unwritten or customary law. There is, in fact, no community and no State in the word which exist with written law only, “In his view, law is, “a body of rules of human conduct within a community which by consent of this community shall be enforced by external power.” Views of jurists, who regard international law as really law may be summed up as follows –
(1) The term law cannot be limited to rules of conduct enacted by a sovereign authority. It has been established by Historical Jurisprudence that in many communities a system of law existed although such communities lacked a formal legislative authority. As pointed out by Starke, such law did not differ from any State law with true legislative authority.
(2) As pointed out by Oppenheim, in practice, international law is recognized as law by the States and they consider it binding on them.
(3) The Austiniam concept of law fails to account for the customary rules of International law.
(4) In some States (for example U.S.A. and U.K.), international law is treated as a part of their own law.
(5) International conferences and conventions treat international law as law in the true sense of the term,
(6) The statute of International Court of Justice provides that the court shall decide such disputes as are submitted to it in Accordance with International Law.
(7) Those who deny the legal character of International law emphasize that it is frequently violated. It is true that International law is frequently violated but it does not mean that it is not law. Even State or municipal law is frequently violated. Frequency of violations of law and the question of international law being law are two different things. Frequency of violation is connected with the weakness or strength of the enforcement machinery. Though State or municipal law is frequently violated, it is never said that it is not law. What is true of municipal law should also hold good for International law.

Weakness of the International Law – Following are the weakness of the International Law –
1. It lacks effective authority to enforce its rules.
2. It lacks effective legislative machinery.
3. The International Court of Justice has no compulsory jurisdiction in the true sense of the terms.

4. The sanctions behind international are very weak.
5. It cannot intervene in the matters which are within the domestic jurisdiction of States.
6. Many rules of International law are uncertain and vague.
7. International has failed to maintain order and peace in the world.

Suggestions for improving International Law –
(1) The international Court of Justice should be given compulsory jurisdiction in the true sense of the term.
(2) An International criminal court should be established to decide cases of International crimes.
(3) International Law should be properly Codified and Scientifically revised from time to time.
(4) The machinery to enforce the decisions of the World Court should be strengthened.
(5) The power and scope of the activities of the International law Commission should be expanded.
(6) The doctrine of judicial precedents should be applied in the field of International law.
(7) The legislative activities of the General Assembly should be further enlarged.
(8) The U.N charter should be amended as to authorize the U.N to intervene in such matters with the domestic jurisdiction of States as are of international concern.
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